Abhiraj Kuer vs Debendra Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 379 of 1958

Decision Date: 15 September 1961

Coram: K.C. Das Gupta, K.N. Wanchoo, J.C. Shah

In this appeal, the Supreme Court of India considered a dispute filed by Abhiraj Kuer against Debendra Singh, with the judgment rendered on 15 September 1961. The opinion was authored by Justice K.C. Das Gupta and was delivered by a bench comprising Justices K.C. Das Gupta, K.N. Wanchoo and J.C. Shah. The case was cited as 1962 AIR 351 and 1962 SCR (3) 627, and it also appeared in the law reports as R 1962 SC 356 and R 1981 SC 178. The matter concerned the application of the Banaras School of Mitakshara Hindu law to the adoption of a specific kinship relationship, namely a wife’s sister’s daughter’s son.

The petitioner, Abhiraj Kuer, acted as a reversioner and sought a declaration that the adoption of the first respondent (the son of the wife’s sister’s daughter) by the second respondent (the wife of the deceased husband) was invalid under the law, and consequently that the first respondent had no right to the property left by the deceased husband. Both parties were governed by the Banaras School of Mitakshara Hindu law. The central legal question was whether a wife’s sister’s daughter’s son could be validly adopted by a person subject to that school of Hindu law. The Patna High Court had answered the question affirmatively and had dismissed the suit.

The appellant relied before this Court upon the treatise Dattak Mimansa by Nanda Pandit, which specifically excluded a wife’s sister’s daughter’s son from the class of persons admissible for adoption on the ground of an incongruous relationship, known as Viruddha Sambandha. Pandit’s argument also drew on the Ashvalayana text, which prohibited marriage with a sapinda, sagotra or Viruddha Sambandha girl, such as a wife’s sister’s daughter. The appellant contended that when a positive statement in a scriptural text is followed by a negative one, the negative statement—which contains the prohibition—must be regarded as mandatory. Moreover, the appellant argued that because the prohibition against marriage to a sapinda or sagotra girl was mandatory, the prohibition against marriage to a Viruddha Sambandha girl should be equally mandatory.

The Court examined these submissions and held that the contentions advanced by the appellant were without substance and therefore failed. The Court affirmed that the adoption of a wife’s sister’s daughter’s son is legally valid under the Banaras School of Mitakshara Hindu law. The Court observed that none of the reasons that render marriage to a sapinda or sagotra girl invalid were present in the situation of a marriage to a Viruddha Sambandha girl, and that the rule against marrying a Viruddha Sambandha girl was not intended by its author to be mandatory. Consequently, the extension of the Viruddha Sambandha rule to adoption, as suggested by Nanda Pandit, was not meant to be compulsory.

The judgment also distinguished the earlier decision in Minakshi v. Ramanada (1886) I.L.R. 11 Mad. 49, and further held that the marriage of a Hindu man with his wife’s sister’s daughter is not invalid under Hindu law, citing Ragavendra Rau v. Jayaram Rau (1897) I.L.R. 20 Mad. 283. After reviewing the relevant case law, the Court affirmed the validity of the adoption in the facts before it.

Procedurally, the case was filed as Civil Appeal No. 379 of 1958, an appeal from a judgment and decree dated 17 January 1956 of the Patna High Court, which itself was an appeal from Original Decree No. 169 of 1947. The counsel appearing for the parties were identified only in their representative capacities.

Counsel for the appellant comprised Singh, R. K. Garg, M. K. Ramamurthi and S. C. Agarwal, while counsel for the respondent was R. C. Prasad. The judgment was delivered on 15 September 1961 by Justice Das Gupta. The principal issue framed by the appeal was whether a son of a wife’s sister’s daughter could be validly adopted by a person subject to the Benaras School of the Mitakshara Hindu Law. The appeal arose from a certificate issued by the Patna High Court and challenged a lower‑court decree dated 17 January 1956. The plaintiffs claimed they would have succeeded to the estate of Babu Ram Singh on the death of his widow, except for the adoption of Devendra Singh that the widow effected on 9 June 1935. Consequently, the plaintiffs instituted the present suit seeking a declaration that the adoption of Devendra Singh by the second defendant, Babu Ram Singh’s widow, was void, and that, irrespective of the declaration, the adoption was illegal and therefore Devendra Singh possessed no right to the property of Babu Ram Singh. The principal ground for attacking the adoption was that Devendra Singh was the son of the widow’s sister’s daughter. An additional ground alleged that Babu Ram Singh was governed by the Mithila School of Hindu Law; this contention had been rejected by the lower courts and was abandoned before this Court. No dispute remained concerning the fact of adoption itself. Accordingly, the sole question for determination was whether the adoption of a wife’s sister’s daughter’s son was permissible under law. The High Court had answered this question affirmatively and dismissed the suit; the present appeal therefore contested that decision. In support of the contention that such an adoption was invalid, counsel relied on a passage from Nanda Pandit’s Dattak Mimansa, as cited in Whitley Stokes’s Hindu Law Books, pages 590‑591. The passage read: “17. Accordingly, the brother, paternal and maternal uncles, the daughter’s son, and that of the sister, are excluded: for they bear no resemblance to a son. 18. Intending this very position, it is declared in the sequel, by the same author: ‘The daughter’s son, and the sister’s son, are declared to be the sons of Cudras. For the three superior tribes, a sister’s son is not where mentioned as a son. Here even the term “sister’s son” is illustrative of the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness of the son proposed to be adopted to have been begotten by the individual himself through appointment to raise issue on the wife of another.’ 19. The mutual relation between a couple, being analogous to the one, being the father or mother of the other, connection is forbidden: as for instance‑the daughter of the wife’s sister, and the sister of the paternal uncle’s wife.” The learned counsel argued that the meaning of this text was that where the relation between the parties to the adoption resembled the relation of a father or mother to a child, such a connection was prohibited, and therefore the adoption of a wife’s sister’s daughter’s son fell within the barred category.

In the passage concerning marriage, the Court explained that the relationship between a bride and a bridegroom was compared to that of a father and a mother. It held that if the bridegroom were regarded, in effect, as the father of the bride, or if the bride were regarded, in effect, as the mother of the bridegroom, such a marriage would constitute a prohibited connection. The two illustrative examples were presented in that order to demonstrate those situations. The Court then observed that, similarly to the discussion in the Grihaparisistha on marriage, the rule of prohibited connection was to be applied in cases of adoption as well. Consequently, a person who would have been the son of a prohibited connection if he had been born to the adopter must be excluded from adoption. In other words, an individual whose mother could have been subjected to sexual relations by the adopter could not be taken in as an adopted son. The Court noted that because a wife's sister’s daughter’s son was expressly excluded from the list of persons eligible for adoption, there was no way to avoid the conclusion that such an adoption would be legally invalid. Counsel for the parties emphasized that the statements on adoption found in the Dattak Mimansa carried great authority. The Court recognized that, for many years, both the Dattak Chandrika of Kuvera and the Dattak Mimansa of Nanda Pandit had been regarded as highly authoritative sources on all questions of adoption. It also recorded that Professor Jolly, in his Tagore Law Lectures, had categorically described the Dattak Mimansa as being of little value, and that distinguished scholars such as Dr Mandlik and Golap Chandra Sarkar, writing in the later part of the nineteenth century, had subjected many of Nanda Pandit’s views to serious criticism. Nevertheless, the Privy Council, in Bhagwan Singh v. Bhagwan Singh (1), acknowledged that both the Dattak Mimansa and the Dattak Chandrika had been accepted by courts, including the Privy Council itself, as highly respected authorities. The Privy Council referred to Lord Kingsdown’s observations in Rungama v. Atchama (2) and to Sir James Colvile’s remarks in Collector of Madura v. Moottoo Ramlinga Sathupathy (3), stating: “To call it (i.e., Dattak Mimansa) infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.” The Court further mentioned the observations of the Privy Council in Sri Balusu Gurulingaswami v. Sri Balasu Ramalakshmamma (4), decided on the same date of 11 March 1899, shortly before the Bhagwan Singh decision, which expressed concurrence that caution was required when accepting glosses in the Dattak Mimansa and Dattak Chandrika that departed from or added to the Smirities. The Court concluded that there could be no doubt that the rule prohibiting the adoption of the son of a woman who could not have been married by the adoptive father had been firmly established.

In this passage the Court observed that Nanda Pandit introduced the concept of an incongruous relationship, or Viruddha Sambandha, as a new element to the existing law. The Court found it noteworthy that Nanda Pandit, while commenting on Saunaka’s description of the adoption ritual, referred to the Dattaka Chandrika’s observation on page 14 that a son should be adopted, interpreting the “reflection of a son” as the capacity to be regarded as begotten by the adopter through appointment. The Dattak Mimansa accepted this view and further advanced the doctrine that a Viruddha Sambandha relationship constitutes a bar to adoption. The Court held that it was unnecessary to determine the precise authority of this addition, because, for reasons to be discussed, Nanda Pandit presented the rule only as a recommendation rather than a compulsory prohibition. The Court noted that for many years the courts have recognised that the Dharma Sutras, the Grihya Sutras and their commentaries contain a mixture of statements that are merely advisory alongside those that are mandatory. In the case of Balu Gurulingaswami, the Privy Council observed that recent advances in Sanskrit studies had reinforced Sir William Macnaghten’s opinion that a prohibited act does not automatically become illegal, and that the distinction between the legal bond (vinculum juris) and the moral bond (vinculum pudoris) is often unclear. The Privy Council further cautioned, recalling its earlier decision in Rao Balwant Singh v. Rani Kishori, that scholars must exercise great care when interpreting works that blend religion, morality and law, lest foreign practitioners, accustomed to treating any authoritative passage as law, impose rigid restrictions on Hindu society that were never intended by the original legislators. The Court affirmed that this admonition remains relevant today. Consequently, the Court examined the exact words employed by Nanda Pandit in formulating his rule against adoption arising from a Viruddha Sambandha. He stated that a person who, if begotten by the adopter, would have been the son of the adopter, should be avoided, but he did not address the consequences of adopting a Viruddha Sambandha Putra. If the rule were meant to be mandatory, the author—who demonstrated mastery of logic and familiarity with the principles governing mandatory injunctions—would have expressed the requirement unequivocally, especially because he was introducing a novel rule. Instead, he qualified his language, indicating that the expression “adoption of a son of a Viruddha Sambandha girl should be avoided” cannot be interpreted as an obligatory command that would render such an adoption invalid. The Court also observed that the only authority Nanda Pandit cited against a Viruddha Sambandha marriage, from which he derived his adoption rule, was limited, reinforcing the view that his pronouncement was intended as a cautionary recommendation rather than a fixed legal prohibition.

In the passage under consideration, the author notes that the translation of Sutherland’s work refers to a “prohibited connection must be excepted,” yet the author provides no comment on the consequences if a Viruddha Sambandha Putra were to be adopted. The Court observes that, had the rule been intended to operate as a mandatory injunction, it would have been reasonable to expect the author—who, as the treatise demonstrates, possessed mastery of logic and was familiar with logical principles governing mandatory injunctions—to state this requirement expressly. This expectation is heightened because the author was introducing a novel rule. Nevertheless, the author limits himself to the observation that the language stating that the adoption of a son of a Viruddha Sambandha girl “should be avoided” cannot be interpreted as imposing a mandatory prohibition, such that failure to comply would render the adoption invalid under law.

The Court further points out that the sole authority cited by Nanda Pandit to support his position against Viruddha Sambandha marriage, which he extends to adoption, is the Ashvalayana text. That text declares that a duly qualified bridegroom should marry a duly qualified maiden who is younger, not a sapinda, not of the same gotra, and whose marriage does not involve a Viruddha Sambandha, meaning a contrary or improper relationship. A later comment in the same work explains that Viruddha Sambandha denotes a relationship that, before marriage, resembles that of a father or mother to the bridegroom, giving examples such as the daughter of the wife’s sister or the sister of the maternal uncle’s wife. The Court asks whether this provision is mandatory, i.e., whether a marriage to a girl in such a relationship would be void, and concludes that it is not satisfied that this is the legal position.

It is noteworthy that, while many Dharma Sutras and Grihya Sutras discuss at length the categories of girls eligible for marriage, none except the Ashvalayana passage address Viruddha Sambandha. In later periods, the only digest that references this Ashvalayana rule is the Nirnaya Sindhu of the late sixteenth century; the earlier sixteenth‑century treatise on marriage by Raghunandana contains no such reference. Nirnaya Sindhu offers only a terse citation, stating that sages forbid marriage to a girl of Viruddha Sambandha, illustrating the relationship as “the wife’s sister’s daughter; the father’s brother’s wife’s sister” without any further commentary. The Court finds it reasonable to infer that numerous Smriti authors and commentators familiar with marriage law were aware of the Ashvalayana passage, yet they did not treat it as a binding rule.

In this case, the Court noted that the passage under consideration was merely a recommendatory rule and was not regarded as having great importance. Counsel for the petitioner argued that whenever a positive statement is followed by a negative statement, the negative part must be treated as a prohibitory command. Accordingly, counsel maintained that the rules appearing in the latter portion of the passage should be regarded as mandatory. The Court found no support for this position either in contemporary rules of statutory interpretation or in the traditional rules of interpretation employed by the Hindu Shastras. To illustrate the point, the Court referred to an example from the Yajnavalkya text, which states: “Let a man whose bachelorhood is unblemished marry a wife who possesses good qualities, who has not been previously enjoyed, who is beautiful, who is not his sapinda, who is younger than himself, who is free from any complaints, who has brothers, and who does not belong to the family descended from the same primitive guide.” The passage then adds a negative rule that a girl suffering from disease should not be married. The Court observed that, although this negative rule follows several positive conditions concerning marriage, it is clearly not intended to be mandatory; it does not render a marriage with such a girl invalid. This view had also been expressed by the commentator Vigyaneshwara. The Court further examined Ashvalayana’s own statements in the fourth section of the first chapter of his Grihya Sutra. After stating that “a daughter should be given to a man of understanding,” the text continues with a positive direction that one should marry a girl who is understanding, of good looks, good conduct, and good qualities, and who is free from disease. Again, a positive directive is followed by a negative rule prohibiting marriage to a girl who suffers from disease. The Court emphasized that even in this context the negative rule is not to be read as creating a mandatory prohibition that would invalidate the marriage. Counsel for the respondent argued that the same text contains three rules against marrying a sapinda girl, a sagotra girl, and a Viruddha Sambandha girl, and since the first two rules are treated as mandatory, the third should likewise be mandatory, leading to invalidity of the marriage. The Court noted that the reasons for treating the first two rules as invalidating the marriage have been summarized by Raghunandana in his Udhvahatattva, as translated by Dr Jogendra Nath Bhattacharyya, where the negative ordinances prohibiting marriage with

The Court explained that girls who belong to the same gotra, pravara or similar lineage are classified as “parudasa”, which are exceptional clauses linked to a vidhi. These clauses function as proper prohibitions, comparable to the rule that forbids sexual union on parva days, because they prohibit such marriages together with condemnatory and penance provisions, as noted in the texts of Apastamba and Sumantu (cited on page 187), and also because such marriages may arise from natural inclination. The term “wife” was likened to the terms yupa (sacrificial post) and ahavaniya (sacrificial fire) and is understood to denote a female taken in marriage through occult ceremonies. Consequently, when a sapinda or a sagotra girl is taken in marriage, she does not acquire the status of wife. The Court found it clear that none of the reasons that justify treating a breach of the first two rules in Ashvalayana’s text – the rules against marrying a sapinda girl or a sagotra girl – as rendering the marriage invalid are present in a breach of the third rule, which bars marriage to a Viruddha Sambandha girl. It was further held that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl to be a mandatory prohibition. This understanding must have been even clearer to Nanda Pandit, and when he extended the concept of Viruddha Sambandha to adoption on the basis of Ashvalayana’s rule against Viruddha Sambandha marriage, Nanda Pandit could only have intended his rule concerning Viruddha Sambandha adoption to be a recommendation rather than a mandatory prohibition. The Court drew its attention to the Madras High Court decision in Minakshi v. Ramananda (1886) I.L.R. 11 Mad. 49, where the judges observed that in marriage there are three prohibitions: (1) the parties should not be sapindas; (2) they should not be sagotras; and (3) there should be no Viruddha Sambandha or contrary relationship that would make the sexual connection incestuous. The true issue before that Full Bench was whether a valid adoption under Hindu law could occur when a legal marriage is not possible between the person for whom the adoption is sought and the mother of the boy to be adopted, in her maiden state. In that case the adoptee’s mother was a sagotra of the adoptive father, thereby precluding any legal marriage between them. Consequently, the judges did not need to consider whether the Viruddha Sambandha rule against marriage was mandatory. The Court is not aware of any High Court decision that treats Nanda Pandit’s rule against Viruddha Sambandha adoption as a mandatory prohibition. Accordingly, for the reasons discussed, the Court held that the rule introduced by Nanda Pandit is only a recommendation and therefore it does not assist the appellant in arguing that the adoption of the wife’s sister’s daughter’s son is invalid.

Jha attempted to rely on a rule that has been accepted by almost all High Courts except the Bombay High Court, which holds that a legal adoption cannot be valid unless a legal marriage is possible between the adopter and the biological mother of the child, while she remains unmarried. He argued that a lawful marriage could not exist between a man and his wife’s sister’s daughter. For the purposes of this discussion the Court assumed that the correctness of this rule, at least as articulated by the Banaras School, could not presently be challenged. Nonetheless the Court found the argument unavailing because there was no substantive basis to conclude that a valid marriage between a man and his wife’s sister’s daughter is impossible. The counsel supporting Jha’s position resorted to the ancient Asvalayana doctrine of Viruddha Sambandha as the only source to prohibit such a marriage. The Court had already examined this doctrine and determined that it is merely a recommendation and does not establish that a marriage contravening it is legally void. Consequently the reliance on Viruddha Sambandha could not sustain the claim that the adoption was invalid.

To assess the permissibility of the marriage, the Court turned to several learned authorities. In 1878 Dr. Gooroodas Banerjee, in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan (page 64), observed that the prohibition of marriage by affinity, which exists in other legal systems, has no place in Hindu law; instead, the prohibition of marriage with sapindas partly fills that gap, as does the prohibition of widow remarriage. He further stated that Hindu law does not forbid marriage with the wife’s sister, nor with her niece or aunt. Dr. Jogendra Nath Bhattacharya, in the third edition of his Commentaries on Hindu Law, Volume I, after referring to the Nirnaya Sindhu’s remarks against marriage with the wife’s sister’s daughter, acknowledged that such marriages have occurred in Bengal, although Hindu sentiment often opposes them. The issue was directly addressed in the case of Ragavendra Rau v. Jayaram Rau (1897) I.L.R. 20 Mad. 283, where Justice Subramania Ayyar and Justice Benson, relying on Dr. Banerjee’s exposition, Syama Charan Sarkar’s Vyavastha‑Darpan, Dr. Bhattacharya’s commentaries, and other textbooks, held that a marriage between a man and his wife’s sister’s daughter is legally valid. The judges noted that, at least in South India, there was little indication that any community segment disapproved of such unions. Accordingly, the Court concluded that a Hindu marriage to a wife’s sister’s daughter is not invalid under law, even if it may be disfavoured by some individuals. The Court also noted that Jha’s second argument, based on the aforementioned rule, had been assumed not open to challenge for the purposes of this case.

In the matter before the Court, the argument was advanced that a adoption could not be considered valid unless the individual for whom the adoption was sought could lawfully contract a marriage with the biological mother of the child while she remained in her maiden condition. The Court examined this proposition and concluded that the contention must fail, for it would otherwise preclude a large number of lawful adoptions that the law does not forbid. Accordingly, the Court held that the decision of the High Court was correct in finding that the adoption of the son of a wife’s sister’s daughter is permissible under the applicable legal provisions. On the basis of that finding, the Court dismissed the appeal, ordered that the costs of the proceedings be awarded to the respondent, and entered a final order that the appeal was dismissed.